Milton Education & Support Assn. v. Milton Board of School Trustees

Milton Education & Support Assn. v. Milton Board of School Trustees
(97-218); 171 Vt. 64; 759 A.2d 479

[Filed 14-Jul-2000]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal  revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of  Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any  errors in order that corrections may be made before this opinion goes
  to press.


                                 No. 97-218


Milton Education and Support Association	  Supreme Court

                                                  On Appeal from
     v.		                                  Labor Relations Board

Milton Board of School Trustees	                  March Term, 1998


Catherine L. Frank, Chair

Joel D. Cook, Montpelier, for Plaintiff-Appellee.

Christopher D. Roy and Dennis W. Wells of Downs Rachlin & Martin PLLC, 
  Burlington, for Defendant-Appellant.


PRESENT:  Amestoy, C.J.,  Morse, Johnson and Skoglund, JJ.


       SKOGLUND, J.   This case involves the obligation of parties to a
  collective-bargaining  agreement to exhaust available contractual remedies
  before a statutory unfair-labor-practice charge  will lie under the Vermont
  Municipal Relations Act.  The Milton Board of School Trustees (school 
  board) appeals from a decision of the Vermont Labor Relations Board (Labor
  Board), which held  that the school board violated 21 V.S.A. § 1726(a)(5)
  by failing to bargain in good faith with the  Milton Education and Support
  Association (association) over the decision to lay off bargaining-unit 
  employees and to subcontract for custodial services.  On appeal, the school
  board claims that,  because the scope of its management rights under the
  collective-bargaining agreement

 

  is a question of contract interpretation, the Labor Board erred by refusing
  to defer to the arbitration  process provided for in the
  collective-bargaining agreement.  Further, the school board claims that 
  the Labor Board erred in concluding that the association did not waive its
  right to bargain over the  subcontracting decision.  We agree with the
  school board's first argument; however, we disagree with  its second
  argument.  Therefore, we affirm in part, reverse in part and remand for the
  Labor Board to  reconsider its decision in light of the result of the
  parties' arbitration.

                                     I.

       The association is the exclusive bargaining representative for the
  teachers and support  personnel, including custodial staff, employed in the
  Milton Town School District.  The parties,  pursuant to 21 V.S.A. § 1725,
  have engaged in collective bargaining periodically over the years and  have
  entered into several successive collective-bargaining agreements for
  non-teacher employees.  A  brief review of the parties' negotiation history
  and prior bargained agreements is helpful to this  discussion.

       Article III of the parties' 1992-94 collective-bargaining agreement
  contained the following  language enumerating management rights:

    It is herein agreed that except as specifically and directly
    modified by  the express language in a specific provision of this
    Agreement, the  Board retains all rights and powers that it has,
    or may hereafter be  granted by law, and may exercise such powers
    at its discretion.

  The parties continued to be governed by the 1992-94 agreement into 1995
  while they negotiated a  successor agreement.

       In the spring of 1995, the school board openly considered, and decided
  against,  subcontracting the school district's custodial and maintenance
  services to a non-bargaining-unit